Category: Jurisdiction and Procedure
In United States v. Rose, the Court (Katzmann, Walker, and Bolden, sitting by designation) rejected a jurisdictional challenge to a guilty plea to violating the Hobbs Act, potentially giving rise to a Circuit split. The defendant, Floyd Rose, was charged with robbing his victim by forcing them to withdraw money from their bank’s ATM and then hand it over to Rose. After pleading guilty to Hobbs Act robbery, Rose argued that his plea should be set aside because the robbery lacked any connection to interstate commerce.
In United States v. Mark Henry, the Second Circuit (Jacobs, Cabranes, and Wesley, Js.) affirmed that the Arms Export Control Act (“AECA”), 22 U.S.C. § 2751 et seq., does not constitute an unconstitutional delegation of legislative authority to the executive branch, in addition to addressing various issues of trial procedure. The defendant, Mark Henry, appealed his 2014 conviction following a jury trial of violating and attempting to violate the AECA by exporting “ablative materials”—military-grade technology used in rockets and missiles—and microwave amplifiers to customers in Taiwan and China. The AECA prohibits the exportation of ablative materials, microwave amplifiers, and other “defense articles” except pursuant to a license issued by the Directorate of Defense Trade Controls, a division of the U.S. Department of State. The government presented evidence at trial that the defendant was aware of the need for an export license, that he did not have such a license, and that instead of acquiring a license the defendant took steps to conceal his exportation of restricted materials through the use of intermediaries, fictitious companies, and falsified documents, among other things. The court allowed the defendant, who is from China and primarily speaks Mandarin, to testify at trial in English through the help of a standby interpreter, although the court otherwise required a translator to assist the defendant throughout the trial.
Court Declines to Allow Defendants in Fraud Scheme to Utilize 28 U.S.C. § 2255 or Writ of Coram Nobis to Challenge Order of Restitution
In United States v. Rutigliano, No. 16-3754 et al., the Second Circuit (Jacobs, Raggi, Droney) refused to endorse the reduction of a restitution order against defendants who had conspired to submit fraudulent disability pension applications, either via a motion under 28 U.S.C. § 2255, or via a petition for a writ of coram nobis pursuant to 28 U.S.C. § 1651. Although the panel declined to hold that such vehicles could never be used by criminal defendants to collaterally attack an order of restitution, the Court made clear that the facts at hand rendered both § 2255 and § 1651 relief unavailable to these defendants, and vacated the district court’s order reducing defendants’ restitution obligations.
In a short opinion in United States v. Ohle, 16-601-cr, the Second Circuit (Leval, Calabresi, Cabranes) resolved two open questions about the application of Federal Rule of Appellate Procedure 4, both in the context of a proceeding brought under Title 21, United States Code, Section 853(n). Section 853(n) is the provision of forfeiture law that can be invoked by a third party who claims to have a superior interest in assets that the government is seeking to forfeit. The Circuit held that although 853(n) proceedings arise in the aftermath of a criminal conviction, these ancillary proceedings are civil in nature. The Circuit also held that when the district court issues a short order resolving a motion and promises that a more detailed opinion will follow, plaintiffs may not wait for the more detailed opinion; the time to appeal begins to run upon the issuance of the initial order.
Circuit Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert Services
In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant had used as an illegal landfill. Although not the panel’s primary focus, the order also addresses a district court’s role in approving or denying an indigent defendant’s request for expert services—an issue currently being examined as part of a broader review of the defense funding under the Criminal Justice Act (“CJA”) by an ad hoc committee chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas.
On September 18, 2017, in United States v. Caltabiano, No. 16-1275-cr, the Second Circuit (Walker, Lynch, and Lohier, Js.) clarified the jurisdictional scope of a Notice of Appeal. The Court confirmed its authority to review a criminal appeal notwithstanding errors on a form notice as to the scope of the defendant’s claims. On the merits, the Court affirmed the conviction and sentence of John W. Caltabiano, Jr.
Circuit Denies Protection to Hallway Conversation Between Co-Defendants, Highlighting Limits of JDAs
A Joint-Defense Agreement (JDA) can be an extremely valuable tool in coordinating defenses against pending or impending prosecution, as it formalizes the creation of a zone of privilege in which co-defendants and their counsel can exchange confidential information without fear of compelled disclosure. But as the Circuit’s recent decision in United States v. Krug, No. 16-4136 (Leval, Pooler, Hall) (Aug. 18, 2017) exemplifies, a JDA protects communications between co-defendants only insofar as they further the provision of legal advice. A JDA cannot transform the joint-defense group’s communications relating to business, personal, or other non-legal issues into privileged discussions. As happened here, such non-privileged statements can become part of the government’s case at trial.
Last week, in Barinas v. United States, the Second Circuit held that a defendant who is extradited to the United States to face charges, pursuant to agreement with the asylum nation, may not raise the objection that the prosecution exceeds the scope of the extradition agreement or that he is to be tried on charges other than those for which he is extradited. That objection, known as a “rule of specialty” objection, may be raised only by the asylum nation itself. The panel also held that when a defendant on supervised release becomes a fugitive, his supervised-release term is tolled during the period of fugitivity. The impact of this ruling is that a defendant who commits another crime while a fugitive from supervised release can be charged with a violation specification even if, at the time he committed the second crime, his term of supervised release otherwise would have ended.
Second Circuit Rejects Application of Collateral Order Doctrine to “Non-Colorable” Double Jeopardy Claim
In United States v. Serrano, 16-432-cr; 17-461-cr (Kearse, Calabresi, Cabranes), the Second Circuit denied the defendant’s interlocutory appeal for lack of jurisdiction, holding that the collateral order doctrine is inapplicable to “non-colorable” double jeopardy claims and reaffirming its prior rulings that the denial of a Rule 29 motion does not fall within the scope of the doctrine. The Court infrequently polices the bounds of its appellate jurisdiction, and so it is useful to have this short decision on the subject of when a defendant may take an interlocutory appeal.
Evidence That Defendant Targeted Marijuana Dealer for Marijuana or Proceeds Satisfies Hobbs Act Interstate Commerce Element
The Hobbs Act makes it a crime to “obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery . . . or attempt or conspire so to do.” 18 U.S.C. § 1951(a). “[C]ommerce” is defined under the Act to include “all . . . commerce over which the United States has jurisdiction.” Id. § 1951(b)(3). With its opinion in United States v. Lee, 11-2539, 11-2543, 11-2834, 11-4068, the Court (Cabranes, Pooler, Lynch) has made clear that evidence that a defendant targeted a marijuana dealer for his marijuana or marijuana proceeds is sufficient to satisfy the Hobbs Act’s interstate commerce element (see Op. at 13).
Court Rules That District Court Had Power to Adjudicate Supervision Violations Charged After Expiration of Supervision Term
In United States v. Edwards, the Court (Sack, Raggi, Droney) affirmed a judgment of the District Court (Chatigny, J.) revoking the supervised release of Defendant-Appellant Owen Edwards and sentencing Edwards to 24 months’ imprisonment based on four supervision violations. Edwards had raised two issues on appeal: first, whether the District Court had jurisdiction to revoke his supervised release based on violations charged after the scheduled expiration of his term of supervision; and second, whether the evidence was sufficient to support the particular charge that Edwards had committed a crime while under supervision.
On August 15, 2016, the Second Circuit issued a rare opinion on the subject of the sufficiency of evidence to establish venue in United States v. Lange, No. 14-2442-cr (Jacobs, Chin, Droney). In this securities fraud and conspiracy case, the Court found there was sufficient evidence that the defendants committed a crime in the Eastern District of New York (“EDNY”) when they were aware of “cold call” lists including EDNY residents and where emails soliciting investment were sent to a Postal Inspector in Brooklyn. This connection was sufficient even though the participants in the scheme operated out of Washington State and had little contact with EDNY.
In Jane Doe v. USA, 15-1967, the Second Circuit (Pooler, Livingston, Lohier) vacated the decision of the District Court (Gleeson, J.) granting the petitioner’s motion to expunge all records of her criminal conviction and holding that the District Court lacked subject matter jurisdiction to entertain the motion.
Can the Government employ a domestic search warrant to compel disclosure of communications stored on servers located outside of the United States? In its much anticipated decision in In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 14-2985 (“Microsoft”), a Second Circuit panel (Lynch, J., Carney, J., Bolden, J., sitting by designation) answered that it cannot.
The “Unusual Remedy” of Recalling the Mandate is Available When CJA Counsel Fails to Assist Client with Petitions for Rehearing and Rehearing En Banc
In Taylor v. United States, 15-827 (Katzman, Carbanes, Kaplan), the Court ruled that a defendant’s right to counsel under the Criminal Justice Act includes a right to assistance in petitions for rehearing and rehearing en banc, and that the “unusual remedy” of recalling the mandate is available when counsel appointed under the Act fails to provide such assistance. In so ruling, the Court largely followed Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008), which concluded that recalling the mandate was an appropriate remedy when appellate counsel appointed under the Act promised to file a certiorari petition but failed to do so; in both cases, the Court viewed such relief as necessary to fulfill its own obligations to supervise court-appointed counsel and to protect the Act’s “guarantee of representation.”